With the democratization of media has come a wave of new media makers—bloggers, videographers and journalists—that have blurred the lines between activist, informed opinion giver, and impartial news journalist. The trouble is that much of the journalism being done today happens outside the traditional avenues of publication—newspapers, magazines, and other established media outlets. Amateurs and professionals alike—some with the traditional training of newspapermen and many more with unorthodox career backgrounds, are doing investigative journalism. Determining who is a “journalist” in a legal sense is imperative to the proper functioning of the media in this changing environment. Who is covered by the term defines who is eligible for certain privileges and legal defenses— reporter’s privilege, confidentiality, etc.—that are essential to providing reporters with the tools to effectively report and gather the news.

With the number of blogs in existence topping 156 million in 2011, this legal question has become a hot topic in the courts at the state level. While there are certainly relevant federal cases—Bunlow v Bunlow, Branzburg v Hayes, among others—it has fallen to the states to determine the extent of the first amendment and their own state laws. The premier cases that could have widespread reverberations are Too Much Media v Shellee Hale, Crystal Cox v Obsidian Finance, and The Mortgage Specialists vs. Implode-Explode Heavy Industries, Inc. In each case, self-described journalists were tried for libel or defamation or presented with a cease and desist. Their common defenses fell on the idea that, though they did not work for traditional media outlets, they were in fact journalists and were therefore eligible for their state’s shield law.

Often the question is asked, why does it matter who, specifically, is a journalist. In New York Times v Sullivan, the Supreme Court found that “debate on public issues should be uninhibited, robust, and wide-open” and that this was necessary for effective governance. Having such a debate is impossible without an informed citizenry. It is why Thomas Jefferson once said, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” The Internet has effectively disrupted the news industry, rendering newspapers insolvent and forcing a massive restructuring of how we pay for journalism and what place it has in our society.

In the wake of this disruption, media outlets have had to cut costs to remain afloat, hindering their ability to do long investigative work. For better or worse, with this absence, amateurs and bloggers have stepped in to fill this need. These go-getters are passionate and often unpaid, working long, impossible hours sifting through mountains of information to uncover the issues that our newspapermen no longer can. It is essential that we support these new amateur journalists who seek to inform and educate the public. If one has a doubt about the destructive effect a narrow, traditional definition of journalist might be on such a climate, one only has to look to the examples provided by Gregg Leslie of RCFP. As Leslie put it, “A repeat Freedom of Information Act requester will quickly go broke if she never gets the journalist’s fee benefit or waiver, which is provided for in every open records act, state and federal.” To put it further, any journalist—blogger or otherwise—would find it near impossible to report on a controversial issue without the “solid legal ground for promising confidentiality” to sources that a shield law provides.

As of 2011, 41 states and the District of Columbia have shield laws in place that protect journalists from revealing their sources or testifying in court on behalf of one party or another. Some states, such as Maryland, have had reporter’s privilege laws in place for over a century. Although a uniquely American idea, the privilege has become generally accepted as being an integral part in creating an independent press. The reporter’s privilege, which enables journalists to confidently promise confidentiality to sources that wish to remain anonymous, has been likened to “doctor-patient, lawyer-client, and priest-penitent relationships”, though in truth, the privilege is on far shakier ground. Reporters are routinely subpoenaed to reveal their sources and evidence they might have obtained while on the job.

When reporter’s privilege fails, as it often does in federal court, reporters can choose to reveal their sources or face legal action. It is the argument of lawyers that “the Sixth Amendment right to a fair trial outweighs any First Amendment right that the reporter may have.” While there is some merit to this argument, it should be noted that the “forced disclosure of confidential or unpublished sources” can cause future sources to refuse to talk to reporters, resulting in the dreaded “chilling effect,” a result that the Supreme Court has been vigilant against since Lamont v Postmaster General. The shield law becomes even more tenuous when applied to the growing segment of the population referred to as new media.

One of the most recent cases to test a reporter’s shield law in relation to new media is Too Much Media, LLC v Shellee Hale, which was tried in New Jersey. In the case, Too Much media sued the defendant Shellee Hale, on the grounds of defamation, for comments that she posted on an Internet message board. Hale then attempted to use New Jersey’s newsperson’s privilege to prevent her from having to reveal the confidential sources that provided the information that was the basis of her comments. Hale is a “self-described journalist” who despite not having a journalism degree maintains four blogs and, according to her website, describes herself as an “intuitive counselor,” “investigator,” “Radio/TV personality,” and “Crime Analyst.”

While information provided via the plaintiff should be taken with a grain of salt, Hale does list a variety of associations and certifications ranging from the “Society of Professional Journalism,” “Radio Television Digital News Association,” and the “Washington Association of Legal Investigators,” among others. According to NJ.com, Hale is a “former Microsoft employee and a private investigator.” Among the blogs that Hale runs include “InternetProfileReport,” a “full-service” private investigation agency, “Camandago,” a “diversified media and information” company “focussed [sic] on missing persons, “Psychic Crime Fighter,” and “Missing Persons Newspaper.” In addition, Hale runs a weekly radio show on Washington State’s 1150AM KKNW.

As one can see, Hale’s experience, journalistically and otherwise, is scattershot and eclectic. In many ways, Hale is typical of the career we see out of the new media set—specialized in his/her passion and also varying wildly in training or professionalism. As Clay Shirky, famous media theorist has noted in his recent work Here Comes Everybody, the “transaction costs” on the Internet have fallen with the rise of Web 2.0. What he means by this is that the barriers blocking the layman from setting up a website, blog, or creating their own media outlet have fallen because of our technological familiarity, the low cost of setting up a website, and the increasing ease of use. Thus, in such a world, where anyone can put up a professional looking website that looks like the equivalent of a well-established media outlet, it is much more difficult to tell whether a Shellee Hale is a legitimate journalist or a fraud.

Among Hale’s myriad professions is professional “life coach.” As a “life coach,” she frequently conducted sessions over the Internet via webcam to connect with people out of her geographical range. While doing this, Hale became subject to a number of “cyber flashers,” people who sought her services via webcam for the sole purpose of exposing themselves to her on webcam. Obviously outraged, Hale began to look into “how technology was used to abuse women and decided to investigate the online adult entertainment industry.” Hale created a website in 2007 named Pornafia to serve, according to Hale, as “an online news magazine and bulletin board” for the public to gain and exchange information on the adult entertainment industry12. However, Hale never fully launched Pornafia. The site was registered and under -construction but Hale never contributed articles to it nor hired others to do so. Instead, according to the Supreme Court brief, Hale began posting on the message board Oprano, which bills itself as “the Wall Street Journal of Porn.”12

In 2007, Hale began posting a series of entries on the Oprano message board regarding “reports of a security breach” of Too Much Media’s software known as NATS.12 The breach “potentially exposed personal information of customers” who believed they signed up anonymously.12 Hale alleged that she conducted a detailed investigation that revealed that TMM had violated New Jersey law, had profited from the breach, and threatened people who questioned the behavior.12 Much of Hale’s research included confidential sources. Perhaps one of the greatest sticking points in this case is that Hale never contacted TMM for their side of the story, represented herself as a reporter to her sources nor had proof of affiliation with a recognized news entity. When TMM alleged defamation and false light, Hale moved for a protective order under New Jersey’s Shield law.

The NJ Supreme Court did not rule in favor of Hale for a number of reasons. The first was that the court held that “online message boards are not similar” to the news entities listed in the statue. It was the belief of the court that message boards are the equivalent of “unfiltered, unscreened letters to the editor…or, in modern day terms, unedited unscreened comments posted by readers of NJ.com.” The court stated that “[they] do not believe that the Legislature intended to provide everyone who posts a comment…an absolute reporter’s privilege.” This would clearly open up the floodgates and render everyone open to reporter’s privilege, effectively making it state law that no one would have to reveal their “confidential sources.”

Tom Cafferty, attorney for the New Jersey Press Association who filed an amicus curiae brief in the case, echoed the Supreme Court’s fear over extending reporter’s privilege to all commenters. He believes that such a system would be untenable, stating “We can’t operate in a system where everybody who posts anything on the Internet is a journalist…If everyone is a journalist, and everybody has the privilege, does anybody really believe the Legislature is going to stand for that?” As Cafferty so astutely noted, if the privilege ever came to be interpreted that way, then “nobody in New Jersey has an obligation to testify.” One can imagine the strain this would put on the legal system to do its job.16

A secondary concern of the court, something of a compromise to the message board precedent, would be to set up an “intent test.” In Von Bulow v Von Bunlow, the Second Circuit Court created an intent test to find out if an individual could claim privilege. The court decided that “the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process.” Hale, despite her lack of professional affiliations with traditional news organizations, likely could have passed this intent test had the court used it. In Von Bunlow, the court found that such a test applied to book authors. Not only did Hale demonstrate that she was disseminating information to the public from the get-go (we’ll exclude for the moment her poor choice in medium), she also claimed that her reports were based on notes that were in preparation for a book she was writing on the porn industry. However, the court stated that if the legislature had intended for there to be an “intent test” as part of the privilege, it would have been established in the law—which it was not. It should be noted that the court did say that should the legislature go back and add such an “intent test,” it would be well within itstheir jurisdiction.

The appellate division of the New Jersey courts had its own reasoning for denying Hale the reporter’s privilege. The appellate court’s hang-ups sound familiar: no mutual understanding of confidentiality between Hale and her sources, lack of credentials, failure to adhere to “journalistic standards” (fact-checking, editing, conflicts of interest), lack of notes, failure to identify herself as a reporter, and, this is the most interesting one for our purposes, “‘merely assembl[ed] the writings and postings of others’ and ‘created no independent product.’” That last criterion is so crucial because of how many blogs operate in this manner. To many extents, journalism in the blogosphere (and this is not an indictment) is a work of collective action, of reporting and reposting. It is read/write culture at its best, where a story picks up depth as it flows through different outlets. The appellate court directly challenges that model as legitimate journalism.

It is no surprise then that the multitude of amicus curiae briefs prepared by various media organizations (among them North Jersey Media group, ACLU, and The Reporter’s Committee) all agreed that the Supreme Court had to reject the Appellate courts criteria and strongly encouraged the adoption of an intent test. Bruce Rosen, a media lawyer and author of one of the amicus curiae briefs, had harsh criticism for the appellate’s criteria, stating, “The roadmap they created for judges to determine who a journalist is by those benchmarks . . . I found that the most disturbing…It really sloppies up the shield law.”

The case is not cut and dry, that much is obvious. However, according to Jeffrey Pollock, Hale’s attorney, the Court added criteria that were not present in the Shield Law, narrowing the scope further than was intended. According to Pollock, Hale “does meet the elements of the statute” but that the real test is for the court to decide if what Hale did is reporting and if what she wrote is news.20 Pollock’s statement echoes the Reporter’s Committee amicus curiae brief that argued for an “intent test.” They believed that the criteria put out by the Court was wrong and beside the point—journalism is journalism. Joel Kriezman, the attorney for Too Much Media, said that the statute only covers “members of the media,” adding that the issue of who is media needs to be further defined.20 Eugene Volokh, a law professor at UCLA, said the way for the courts to define the statute is not “whether Hale is a journalist, but whether she is engaged, connected with, or employed by the news media.”20 That last phrase is lifted practically verbatim from the statute. Those three stipulations are harder than ever to decipher in today’s world—do we take Hale’s association with Oprano or her membership with the “Society of Professional Journalism” as evidence of her engagement or connection with news media? It’s up to the courts but it is not an easy solution. In the case of the New Jersey Supreme Court, they chose no.

When it comes to blogs and online content, courts across the country have attempted to apply, if not the exact “intent test” discussed, then court processes that amount to something similar. In doing so, it has become clear that not all blogs are created equal. It’s a dangerous trend that courts have become the deciders of what qualifies as legitimate media, certainly not something the founders intended. However, as with so much of our culture today, the founders could never have predicted the future of our newspapers and media outlets.

In the case of O’Grady vs. Superior Court, the California appellate court found that Power Page, a blog that covers Apple products, qualified for reporter’s privilege because they believed that the site was “conceptually indistinguishable from publishing newspapers, and we see no theoretical basis for treating it differently.” Power Page has published daily since 1995 and operates with nine editors and reporters, publishing around 20 articles per week. In contrast to Shellee Hale, who amounted to one blogger operating as a journalist, Power Page clearly operates as a full editorial organization. The question came up whether the articles on Power Page constitute news. Often times, the articles amount to little more than rumors or speculation on new Apple products. One of the ways that courts decide if media qualifies as news is whether it serves the public interest. When it came to Power Page, the trial court (not the appellate) stated, “An interested public is not the same as the public interest.” Though the appellate court eventually overturned this ruling, it is an interesting idea for how we consider news. In much the same vein as tech blogs, TMZ.com reports on entertainment figures in a way that skirts the line between rumor and news. There is certainly an interest from the public. TMZ.com gets around 19,000,000 unique visits per month. Comparatively, the New York Times website garners 59,500,000 unique visits per month and the Washington Post website garners around 25,000,000 unique visits per month. TMZ.com is certainly in the same league as these major news organizations if one looks by visitors. However, TMZ.com generally traffics in rumors and gossip as opposed to well-sourced articles. How would a court respond to a reporter’s privilege request from TMZ.com?

Given the O’Grady decision, it is hard to argue that TMZ.com is not a news organization when they decided that Power Page was. Both are rumor mills, just with different focuses. In many respects, that is what a great deal of blogs amount to. So where does one draw the line? In the case of Crystal Cox, the courts found that it has as much to do with the tenor of speech in the articles and on the blog as much as the process and the intent.

In the Crystal Cox case, Obsidian Finance Group v Cox, Cox was sued for defamation in response to a series of posts that she made on her website obsidianfinancesucks.com and other sites. According to Kevin Padrick, one of the plaintiffs, the posts were “false and defamatory.”26 Cox alleged that Padrick and Obsidian Finance were engaged in “tax fraud,” “fraud against the government,” and “hir[ing] a hitman.” Padrick filed a declaration stating that all the statements were completely false and then moved for a summary judgment on the basis that Cox had no evidence for her claims. This case was not a matter of reporter’s privilege (at least not at first) but it is, however, important for the courts’ view of blogs. In the case, the court denied the summary judgment on the grounds that posts made by Cox did not amount to assertions of facts but opinions. As is well documented, “statements which are expressions of opinion are protected by the First Amendment and are not actionable.” The basis for the judge’s decision has to do with the context of the blog. The criteria for deciding whether a statement implies an assertion of fact rests on the “totality of circumstances in which it was made.” Here again, we see that it comes to the courts to decide whether a publication (a blog, a website etc.) qualifies as journalism.

Cox asserts herself as an “investigative blogger” with a focus on the Real Estate Industry. Among the purported media publications she works for, she states that she works on “Real Estate Industry Whistleblower Blogs.” However, the blogs she maintains are Obsidianfinancesucks.com and Summit1031sucks.com, which incidentally both concern Kevin Padrick.28 In regards to how she operates her blog, she noted that “she relies on ‘experts in the field,’ her own research, as well as opinion, commentary and tips sent in by readers and site visitors.” Her description is a pretty standard description of how any blog operates. In an ideal world, such a set up would produce professional level journalism but, without the standardization provided by a larger media outlet, the results vary depending on the blogger’s own practices, skills, and training. In the case of Crystal Cox, that means not much.

Despite Cox’s best assertions that she is, in fact, an investigative blogger, it appears that her saving grace is that the courts did not think so, truly finding her something of an idiot. Littered with odd capitalizations, spelling errors, and links to other news articles, Cox’s posts are shoddy, scattershot and lacking any real substance. One can only hope that Cox’s blog is not the only one the court judge was exposed to because it is not exactly high caliber. In his decision, the judge suggests, “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact.”26 That’s a dangerous generalization to make. While in the case of Shellee Hale, there was an argument to be made that message boards constitute a conversational level of interaction; blogs are far harder to generalize. With hundreds of millions of blogs, there are sure to be many Crystal Coxs but there are also plenty of bloggers doing real investigative work, uncovering information in the public interest.

Cox’s posts generally fell into a similar pattern—an audacious headline referencing Padrick or Obsidian Finance followed by either a link to a story from a major media outlet or some equally audacious accusations against Obsidian followed by a “Coming SOON,” that promised all the details on the plaintiff’s supposed wrongdoing. In the court’s opinion, the judge noted that “[the posts] are on an obviously critical blog [due to the name, obsidianfinancesucks.com], which expressly discloses its bias…” Because of this, the judge thought that there was a reasonable expectation that a reader would consider the posts with a grain of salt. In addition, Cox “repeatedly poses her statements as questions or asserts that she will [sic] prove her accusations.” The judge found that Cox’s language, which he characterized as “a fanciful diatribe,” and the “general tenor” of the posts would temper readers’ expectations of the site.

An interesting wrinkle to this case is that, though the Court moved in favor of Crystal Cox in the statements made on obsidianfinancesucks.com, the court found in favor of Obsidian for a post made on bankruptcycorruption.com. The court stated that the post on bankruptcycorruption.com “could lead reasonable readers to reach differing conclusions about whether the statements…implied an assertion of objective fact.” The site is far less hyperbolic than obsidianfinancesucks.com and the post “read more like a ‘factual narrative’ and contained some ‘fairly specific allegations.’”26 It therefore would be possible for “a fact-finder to read the post as asserting facts.” Electronic Frontier Foundation filed an amicus curiae brief in the case stating that the court’s decision “created an ‘unnecessarily hostile’ environment for Internet speech.”26 While the case is being appealed, so far the court has found in favor of Padrick and granted damages to him.

Though Electronic Frontier Foundation would seem to have a point as per the general climate towards bloggers, it is not doomsday prophecies in all states. In New Hampshire, at least, the state Supreme Court decided in favor of blogs as a form of legitimate journalism. Of course, it helps when the blog one runs really is a providing a service to the public interest. Implode-Explode Heavy Industries, Inc runs the popular website “The Mortgage Lender Implode-O-Meter” (www.ml-implode.com). The Implode-O-Meter “identifies allegedly ‘at risk’ companies and classifies them as either ‘Imploded Lenders’ or ‘Ailing/Watch List Lenders.” The site was featured in a New York Times article entitled “Loan Pains Turned Site Into a Hit,” which called it a “sort of Gawker of the subprime world.” The site was launched in 2007 right around the time that problems in the housing market and mortgage industry began to rise to the surface. Aaron Krowne, who has never worked as a journalist but originated as a computer scientist and mathematician, picked up on an underserved area of journalism and hit it at the right moment. The site has become extremely popular and is watched vigilantly by the industry. According to Jim Reichbach, a leader of Deloitte’s (a professional services firm) banking and securities team, “No one wants to be number 266 [of Implode’s industry death watch]…This is a death toll that is equivalent to the casualty ticker of the Vietnam War.”33 The Implode-O-Meter has beat mainstream media to the scoop numerous times. It was the first to report Michael Jackson’s foreclosure on his Neverland property. Implode was the first to air a 42-second audio track from Family First Mortgage unceremoniously firing its employees by voice mail.

In August 2008, Implode published an article on the New Hampshire Banking Department and Mortgage Specialists. In the article, Implode included a document that supposedly represented Mortgage Specialists’ 2007 loan figures in the form of a Loan Chart. In response to that article, a site user named “BrianBattersby” (Implode allows anonymous commenters) posted two comments. Mortgage Specialists found out about the article and “BrianBattersby”’s comments and requested that Implode remove the article and the loan chart from their website on the grounds that it broke the legal confidentiality of the New Hampshire Banking Department. In addition, Mortgage Specialists demanded the identity of “BrianBattersby” and the source of the Loan Chart.32 The trial court ruled in favor of Mortgage Specialists granting all of their requests. Needless to say, it was appealed all the way up to the New Hampshire Supreme Court.

Implode asserted that the trial court was wrong on all accounts. They stated that the First Amendment protected “a speaker’s right to anonymity” and therefore they should not have to give up “Brianbattersby”’s identity. Implode argued that the “newsgathering privilege” of the New Hampshire Constitution means that Implode does not have to give up the source of the Loan Chart (i.e. de facto Reporter’s Privilege). Mortgage Specialists attempted to argue that Implode is not a news organization and therefore is ineligible for constitutional protection. Reporter’s Privilege was already tested in the New Hampshire Supreme Court in Associated Press vs State of N.H. where the court noted, “Oone study showed that more than ninety percent of the reporters surveyed believed protection of identity was more important than protection of contents.” The privilege was not deemed to be absolute however and the question of what qualifies, as press was never decided. It therefore fell to the Supreme Court to do so in this case.

The scope of the court’s interpretation of reporter’s privilege is broad and comprehensive. In their decision, in addition to the fact that the court found that Implode is “‘legitimate publisher of information’ and a member of the press,” the Court noted that “The informative function asserted by representatives of the organized press…is also performed by lecturers, political pollsters, novelists, academic researchers and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information and that these sources will be silenced if he is forced to make disclosures.”35 While the court still did not allow that reporter’s privilege is universal and absolute, and recommended that issues be taken on a case-by-case basis, it would seem that, in New Hampshire, the Court would have the legal system err towards extending reporter’s privilege to too many media members than too little. In a Columbia Journalism Review article on the case, (written before the Supreme Court decision,) Ryan Chittum put it best. He noted that the trial court’s decision against Implode was “a good illustration of the blurring of the line between traditional and new media and how the old guard still doesn’t get it.” Chittum added, “We need more people reporting on the shady doings of the mortgage industry not less.”36 It would seem that New Hampshire Supreme Court heeded his words.

The Internet has democratized publication and created even more avenues for good journalism, all why disrupting the established industry model. What that means is that more people can provide more information to more people. However, like the beginnings of the printing press, the writing is only as good as the writer who authored it. To that end, there is a balancing act that the courts (and legislatures, and the media itself) must perform so as to ensure the integrity of the press. The courts must find a way to broaden the scope of the definition of a journalist without extending it to everyone (otherwise it becomes meaningless). There is no reason for the thousands of bloggers posting cat pictures on Tumblr to be eligible for reporter’s privilege. However, there is an argument to be made for independent bloggers that are seeking to serve the public interest. The public interest is the key term here for the courts, the legislature, and the media (should it choose to police itself).

Blogging is simply a new medium of journalism that empowers the journalist to become the publisher. In the right hands, it becomes as effective, if not more so, than a newspaper or cable news program. War reporter Kevin Sites, formerly of CNN, now blogs independently. Global Voices is another blog that actively seeks to spread journalism through blogging, picking up well-known reporters such as Rebecca Mackinnon. Dan Gilmor, formerly of the San Jose Mercury News, is another reporter turned blogger. If you’re seeing a pattern, it’s not incidental. As Clay Shirky has noted, “It’s tempting to grandfather these bloggers as journalists since they were journalists before they were blogging, but that would essentially be to ignore the weblog as a form…”37 As one can see, it is now impossible to craft a definition that uses the medium (be it television, newspaper or blogs) to define the profession. The costs of publication used to serve as a gatekeeper to the professional class of journalists. That just is not an effective method anymore.

The question of who is a journalist is clearly muddied up. There’s not really an easy way to come up with a professional definition. Journalism is not law or medicine: a degree is not required. Rather, professionalism in journalism comes from your body of work and your experience and, as reputations often are, it is ephemeral at best. One need only look at the case of the former New York Times’ reporter Jayson Blair or former New Republic writer Stephen Glass to see that time spent in traditional media does not equal journalistic integrity.

Perhaps the best solution then is to exclude the question of who is a journalist altogether. Perhaps the question we should be asking is what is news and what constitutes an act of journalism. If anyone performs an act of journalism, shouldn’t we protect it through the courts? One of the greatest examples of a personal blogger who blurred this line by performing an act of journalism is Alisara Chirapongse. Alisara was a Thai college student who happened to blog about fashion (and her other hobbies) under the moniker “gnarlykitty.” What started out as a blog about “cute shoes and going out dancing” became far more interesting when, in 2006, there was a coup in Thailand. Traditional media was shut down, while blogs were left up. Chirapongse began taking pictures of the tanks that were moving in front of a government building. She was “one of the earliest producers of real news and information inside post-coup Thailand.”38 And after a few of her posts that covered that, she went right back to posting about Hello Kitty phones and fashion. If such an act were to occur in the United States, is it not something that we would want to support and protect? Thus it becomes less about the medium and the person but the act itself.

This all brings us back to the “intent test” that has been floated around in a number of state courts. While one would love for reporter’s privilege to be taken on at the federal level by Congress, at this moment, it is up to the states to monitor reporter’s privilege. The “intent test” is possibly the most effective means of determining who qualifies for reporter’s privilege. The test basically amounts to “whether that person intended to disseminate information to the public, and whether that intent existed at the inception of the newsgathering process (where "newsgathering process" can mean seeking, collecting, or receiving information from a source).” A judge who used the von Bunlow intent test in the U.S. Court of Appeals in San Francisco said, “What makes journalism journalism is not its format but its content.” As one can see, the test focuses on the action as opposed to the person itself. This is crucial in today’s age, as it is the act of journalism that we want to protect.

Such a method for defining journalism is dangerous however, making what is supposed to be our nation’s fourth estate subject to the judiciary. One could argue that this is just an extension of the checks and balances inherent in our system of government, but most journalists would prefer that the courts stay out of it. Robert Cox, co-founder and president of the Media Bloggers Association, put it bluntly, “I don’t think the courts should be involved in deciding what legitimate media is.” Scott Gant, author of “We’re All Journalists Now,” echoed the sentiment, “The government should not determine who can invoke the shield law on the basis of the applicant’s qualifications — if they’re full time, have a journalism degree, are paid and such.” Neither know exactly how the distinction should be drawn if not for the courts, but Avi Adelman, a Dallas blogger, thinks “people like [him] who put up the effort to put up a website, try to do it properly and have good grammar,” are a good starting point.

Journalism needs to serve the public interest, and so long as it does so, it does not truly matter who is performing the act. The Internet has changed news from “an institutional prerogative to news as part of a communications ecosystem.” The ecosystem is comprised of a give and take culture with professionals, semi-professionals and amateurs working collectively. When journalism is preformed, it should always be protected, but that doesn’t mean reporter’s privilege should be absolute.